GODWIN MOSES UDO V. THE STATE
(2016)LCN/8188(CA)
In The Court of Appeal of Nigeria
On Thursday, the 18th day of February, 2016
CA/C/153CB/2015
RATIO
CRIMINAL LAW: PARTICIPLES CRIMINIS; WHETHER ALL PERSONS WHO ARE PARTICIPLES CRIMINIS MAY BE CHARGED AND CONVICTED WITH THE ACTUAL CRIME
The Law is settled that all persons who are participles criminis, whether as principals in the first degree or as accessories before or after the fact to a crime are guilty of the offence and may be charged and convicted with the actual commission of the crime parties participles criminis to a crime, include inter alia every person who actually does the act or makes the omission which constitutes the offence, person who aided abetted or assist them in the commission of the offence or who Counsellor, procure others to commit the offence or knowingly facilitate the commission of the offence. See Section 7 of the Criminal Code. per. PAUL OBI ELECHI, J.C.A.
EVIDENCE: PROOF OF EVIDENCE; WHETHER THE PROSECUTION IS AT LIBERTY TO FILE ADDITIONAL PROOFS OF EVIDENCE
Furthermore, the prosecution is at liberty to file additional proofs of evidence and as held in UGURU VS STATE (2002) 10 NSCQR 37, it could amend the charge anytime until judgment. Per. JOSEPH OLUBUNMI KAYODE OYEWOLE J.C.A.
EVIDENCE: PROOF OF EVIDENCE; WHAT THE PROOF OF EVIDENCE MUST DISCLOSE
The proof of evidence must disclose a prima facie case, sufficient believed, to link the accused with the alleged offence and justify proceeding with the trial. The prima facie case must constitute ground for proceeding. Where the proof of evidence fails to disclose an offence known to law, it would be quashed. See FRED EGBE VS ST ATE (1980) 1 NCR 341. Where the proof of evidence although discloses an offence known to law but insufficiently links the accused person with it as to justify his being put on trial in respect thereof, it would also be quashed. See ABACHA VS STATE (2002) 11 NWLR (PT 779) 437 and OHWOVORIOLE VS FRN (2003) 2 NWLR (PT 803) 176. Per. JOSEPH OLUBUNMI KAYODE OYEWOLE J.C.A.
JUSTICES
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria
Between
GODWIN MOSES UDO – Appellant(s)
AND
THE STATE – Respondent(s)
PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of High Court of Akwa Ibom State, Ukanafun Judicial Division delivered by Hon Justice Ezekiel Ennang on the 31st July, 2015. The 3rd Accused/Appellant at the lower Court whilst the 1st Respondent was the complaint and 1st and 2nd and 4th Accused persons respectively. The 3rd Accused/Application to quash the information filed against him was refused and struck out, hence this appeal.
Upon the information on the charge being served on the Accused persons, 1st-4th Accused/Appellants Counsel filed an application by way of Motion on Notice on the 12th June, 2015 to quash the information or strike out the three information for failing to disclose a prima facie case of conspiracy, Murder and causing grievous harm against the Accused/Applicant for lack of evidence in the proof of evidence to connect the Accused/Appellant with the offence wherewith the 3rd Accused/Appellant was being charged.
The lower Court on the 31st July, 2015 delivered its Ruling and refused the Application to quash the three count information against the 1st-4th Accused/Appellants. Being dissatisfied with the said Ruling the 1st-4th
Accused/Appellants have new filed this appeal.To argue this appeal the 3rd Accused/Appellant distilled 4 issues for determination:
1. “Whether the trial Court can rely on hear say evidence to establish prima facie case of Conspiracy, Murder and causing grievous harm against the 3rd Accused/Appellant when the 3rd Accused/Appellant was not at the scene of crime.(Ground 1).”
ISSUE NO. 2
2. Whether the Learned trial Judge was right to have hold that a prima facie case of conspiracy murder and grievous harm was established against the 3rd Accused/Appellant in the circumstances, particularly when the identity of the 3rd Accused/Appellant and the Alibi raised by him was not resolved by the prosecution.” (Ground 2).
ISSUE NO. 3
3.”whether a Criminal charge preferred in the Magistrate Court without jurisdiction which was sent to Director of Public Prosecution and adjourned sine die amount to the termination of the Criminal proceedings and whether abuse of Court whether abuse of Court process and Criminal jeopardy against the 3rd Accused/Appellant.”(Ground 3).”
4. Whether the Learned trial Judge can rely on disputed State Law
to Rule against the consent to prefer information at High Court of Akwa Ibom State under a valid existing Law (Ground 4).
In considering the issues No. 1, Learned Appellants Counsel submitted that it is a fact that the 3rd Accused/Appellant was not at the scene of crime whether did he personally involved in the attack of the deceased but what the Court relied upon to link the 3rd Accused/Appellant and made out a prima facie against him is the 3rd Accused /Appellant and make out a prima facie case against him is only hearsay.
And so the hearsay evidence of Gideon Amos Udoko cannot of any means make out a prima facie case. It is therefore Learned Appellants submission that the proof evidence by the prosecution against the 3rd Accused/Appellant cannot make out a prima facie case.
Learned Counsel therefore submitted that the proof of evidence from page 6-44 of the records do not support any link of the 3rd Accused/Appellant with the commission of the offences of Conspiracy, Murder and causing grievous harm under which the 3rd Accused was charged.
?Also, Learned Counsel submitted that the filing of information to proffered charge against the 3rd Accused/Appellant
while the criminal proceedings Charge No. UKM/12C/2015 was adjourned sine die without formally terminating the criminal proceedings at the Magistrate Court amount to the abuse of Court process and a double jeopardy for the 3rd Accused/Appellant. See Diniggadsi (Supra. He then prayed the Court to resolve this issue in their favour.
ISSUE NO. 4 Under this issue, Learned Accused/Appellant submitted that publishing of Law (Criminal Procedure Amendment Law 2006 of Akwa Ibom State) in the State gazette without the Constitutional requirement of signature of the dark of the House and the assent of the Governor make the Law invalid null and void and no effect. He then urged the Court to resolve this issue in the favour an finally to allow the appeal and set aside the Ruling of the lower Court.
Before considering the issues raised in this appeal, it would be necessary to first of all consider the merit or otherwise of the Preliminary Objection filed by the Respondent.
?The Respondent by a Notice of Preliminary Objection pursuant to Order 10 of the Rules of this Court filed an Notice of Intention to rely on the preliminary Objection which is incorporated in the
Respondent Brief of Argument as issue No. 4 for determination before this Court in their argument.
?In the said Preliminary Objection, the Respondent argued that the Appellant did not obtain the Leave of either the lower Court or this Court before the filing of the interlocutory appeal. Consequent upon the failure to obtain same the Respondent alleged that this Court is being robbed of jurisdiction to entertain the appeal filed by the Appellant. On the other hand, the Appellant’s Counsel Stated that it is not every interlocutory appeal that needs the Leave of this Court or the lower Court before an appeal is filed. He referred the Court to Section 241(1) of the 1999 Constitution of the Federal Republic of Nigeria as amended which provides for the instances where appeals as of right shall lie to this Court from the decision of the Federal High Court or a High Court of a State. What must be noted in mind is that the appeal of the Accused/Appellant is against an interlocutory Ruling of the High Court of Akwa Ibom sitting at Ukanafun, on which Ruling of the lower Court dismissed the Motion filed by the Appellants herein to quash information No.
HUK/10C/2015.
Consequently, this appeal being an interlocutory Ruling of the lower Court is not listed under Section 241 (1) of the Constitution of the Federal Republic of Nigeria 1999 as amended and so Section 241.(1) of the Constitution of the Federal Republic of Nigeria applies and as a result, the Appellants were duty bound to comply with the Constitutional requirement and to obtain leave and failure to do so is fatal to this appeal and I so hold.
Therefore, this Preliminary Objection therefore succeeds. This conclusion ought to be the end of this appeal. But being a penultimate Court in this Country, it is expedient to also consider the merit of the appeal in the event that the ultimate Court (Supreme Court) does not agree with this conclusion; I shall therefore commence the consideration of the issues raised by the parties.
?The main issue in contention of the Appellant’s argument in this appeal and infact, the backbone is that the Learned trial Judge was in error to have held that the proof of evidence in this appeal discloses a prima facie case against the Appellant when according to the Appellant there was no evidence from the proof of evidence linking the
Appellant with the offence of Conspiracy, Murder and causing grievous bodily harm.
In considering an Application of this nature, to quash the charge against the Appellant on the ground that the proof of evidence and Statements of witness did not disclose a prima facie case against the Appellant the Court must be guided by the following well laid down principles.
1. The Court must confine itself to the proof of evidence and the witnesses statements attached thereto to show whether a prima facie case has been disclosed. Where the proof of evidence does not disclose a prima facie case the Court will quash the charge against the Accused.
2. The proof of evidence must sufficiently link the Accused with the offence although it need not be a conclusive proof of the Accused person’s guilt which is a matter to be determined at the substantive trial.
3. Where there is no sufficient linkage of the Accused to the offence allegedly committed the Court would be on a good ground to quash the charge against the Accused persons. See Abacha vs. State (2002) 11 NWLR (Pt. 779) 431, Ubanatu vs. C.O.P (2000) 2 NWLR (Pt. 643)115.
In Ikoni vs. the State (1986) 3 NWLR (Pt. 28) 340, it was
held “No citizen should be put to the rigous of trial in a Criminal proceeding unless available evidence points prima facie to his complicity in the commission of crime.
In this case at hand, the prosecution witness Gideon Amos Udoka heard the phone call conversation between the 1st Accused/Appellant and one Akaninyene Peter Abai now at large and his Statement to the police launching on the telephone conversation is evidence of what he heard first hand.
The 1st Accused/Appellant is a well known to the prosecution witness who recognised his voice on phone in his house giving directive over the GSM (which was on loud speaker) that the boys including the 2nd-4th Accused/Appellant should not allow the Accused to move or leave the venue of the meeting, following which instruction, the deceased was assaulted to death.
In the instant case, the telephone conversation at speaker phone level which other witnesses of the prosecution heard while on the scene of crime has provided a link with the Accused/Appellant with the offence of Conspiracy, Murder and causing grievous harm although it need not be a conclusive proof of the Accused person’s guilt which is matter to be
determined at the substantive trial.
It is on this ground that I am of the humble opinion that that information No. HUK/10c/2015 as filed with the proof of evidence thereon has disclosed a prima facie case against the Accused/Appellant and therefore, the lower Court rightly dismissed the Motion to quash same filed by the Accused/Appellant.
Consequently, I hereby resolve the above issue No. 1 against the Appellant and in favour of the Respondents. Another issue raised by the Appellant in their Brief is:
“Whether the 3rd Accused/Appellant can be held liable for the offence of conspiracy murder and deceased were actually known and identified by Gideon Amos Udoko and as Stated in the proof of evidence which did not include the 1st Accused/Appellant contrary to the principles of Law enunciated in Abacha vs. State (2002) 11 NWRL (Pt.779) 473, Almustapha vs. State (2013) 17 NWLR (PT 1383) 350.”
This issue is covered by Ground 2 of the Grounds of appeal. Under this issue, one may ask a simple question thus:
“Is the 3rd Accused/Appellant one of the participles criminis in the commission of the offence, the charge sought to be quashed at the lower Court.”
?Whether or not, the
Law is settled that all persons who are participles criminis, whether as principals in the first degree or as accessories before or after the fact to a crime are guilty of the offence and may be charged and convicted with the actual commission of the crime parties participles criminis to a crime, include inter alia every person who actually does the act or makes the omission which constitutes the offence, person who aided abetted or assist them in the commission of the offence or who Counsellor, procure others to commit the offence or knowingly facilitate the commission of the offence. See Section 7 of the Criminal Code.
From the provisions of the above Section, the 3rd Accused/Appellant clearly falls into the category of Counselling and procuring others to commit the offence which he has facilitated through telephone conversation.
?It is on that note that I hereby resolve that the Learned trial Judge was right to have established a prima facie case against the 1st Accused/Appellant when he held that the 1st Accused/Appellant procure and Counsel the attackers to kill the deceased through a phone call. And so I hereby resolve issues 2 and 3 respectively in favour
of the Respondent and against the Appellant.
Another issue raised by the Appellants is to the effect that whether a criminal charge preferred at the Magistrate count without jurisdiction which was sent to the Director of Public Prosecution and adjourned sine die amounted to the termination of the criminal proceedings and whether the filling of information at the same time at the High Court did not amount to abuse of Court process and criminal jeopardy against the 1st Accused/Appellant?
The information filed at the High Court is competent in charge No. HUK/10c/2015 upon which the 1st Accused/Appellant is charged. The Learned Magistrate having declined jurisdiction did not adjourn the said Charge-No. UKM/12c/2015 to future date and the 1st Accused/Appellant was no more required to show appearance in the Magistrate Court.
In view of the above, I hereby resolve this issue in favour of the Respondents. Another issue raised by the 3rd Accused/Appellant at the lower Court was that the information No. HUK/10c/2015 is incompetent in that the consent of the Judge was not obtained before same filed as required by Section 314 (3) (B) of the Criminal Procedure Law Cap 39 vol
2 Laws of Akwa Ibom State 2000. This argument of the Appellant Counsel is of the old school. There is now an amendment to Section 314 of the Criminal Procedure Law of Akwa Ibom State 2006 which authorities the filing of information without the Statement of witnesses being verified on Oath before a Magistrate and without obtaining the consent of a Judge.
In view of this, I shall and hereby resolve this issue in favour of the Respondents as no Law is yet in dispute as contended by the Appellant.
Though the 1st Accused/Appellant is not yet on trial but the positive and credible evidence and unequivocal fixing of the 2nd-4th Accused/Appellants and the telephone conversation at the scene of crime clearly debunks and dispenses with any plea of Alibi or defence of Alibi that may arise from any of the witnesses. See Mohammed vs. State (2014) 5 SC (Pt. 111) 83, Sowemimo vs. State (2004) 2 SC (Pt. 11) 2. There is therefore a prima facie evidence disclosed against the 1st-4th Accused/Appellant and the lower Court was right to dismiss the Accused/Appellants Motion to quash the information.
Therefore, I resolve this issue in favour of the Respondent. Having resolved all the
issues in this appeal in favour of the Respondents, I find no merit in this appeal. The 3rd Accused/Appellant, his motion having been quashed at the lower Court should go back there and take his plea alongside other Accused persons. The appeal therefore fails; it is refused and accordingly dismissed.
I hereby affirm the Ruling of the lower Court in Charge No.HUK/10c/2015 by Hon Justice Ezekiel O. Enang at the High Court of Justice, Ukanafun Judicial Division of Akwa Ibom State.
Appeal dismissed.
ONYEKACHI AJA OTISI J.C.A.: My learned Brother, Paul Obi Elechi, JCA, made available to me a draft copy of the leading Judgment in this appeal, in which he dismissed this appeal. I am in complete agreement with his reasoning and conclusion, which I adopt as mine.
I also dismiss this appeal, which is totally unmeritorious, and affirm the Ruling of the trial Court. I abide by the orders made in the leading Judgment.
JOSEPH OLUBUNMI KAYODE OYEWOLE J.C.A.: An application to quash a charge on grounds of insufficiency of attached proof of evidence although available to an accused person under the extant criminal procedure law in Akwa Ibom
State, is anachronistic in several jurisdictions within the country.
The justification for this is easily fathomed. At best the application only secures a mirage of a reprieve for the accused, virtual without being actual. It does not bar subsequent prosecutions as its success does not result in an acquittal. Furthermore, the prosecution is at liberty to file additional proofs of evidence and as held in UGURU VS STATE (2002) 10 NSCQR 37, it could amend the charge anytime until judgment.
The application is mainly premised on the contention that the information is not supported by the attached proof of evidence as to justify the accused being put on trial.
The proof of evidence must disclose a prima facie case, sufficient believed, to link the accused with the alleged offence and justify proceeding with the trial. The prima facie case must constitute ground for proceeding.
Where the proof of evidence fails to disclose an offence known to law, it would be quashed. See FRED EGBE VS ST ATE (1980) 1 NCR 341. Where the proof of evidence although discloses an offence known to law but insufficiently links the accused person with it as to justify his being put on trial in
respect thereof, it would also be quashed. See ABACHA VS STATE (2002) 11 NWLR (PT 779) 437 and OHWOVORIOLE VS FRN (2003) 2 NWLR (PT 803) 176.
Because this objection bothers on jurisdiction, for where a trial is based on a bad indictment it would be an exercise in futility, it could be entertained even if brought after plea. See IKOMI VS STATE (1986) 3 NWLR (PT 28) 340 per ANIAGOLU JSC at 370.
With respect to the present case, I agree with the more detailed reasoning and conclusion in the leading judgment just delivered by my learned brother, PAUL OBI ELECHI J.C.A the draft of which I was privileged to have read, that the attached proof of evidence link the appellant sufficiently with the alleged offences as to justify his being put on trial in respect thereof.
I therefore find no merit in this appeal and I dismiss it. I also adopt the consequential orders in the leading judgment.
Appearances
VICTOR UKOD ESQ.For Appellant
AND
ERNEST AKPAN ESQ.
F.J. ITIM ESQ.For Respondent
